Tanzania Exhibitors Limited v. Karimbhai Hassanali Adamji Jariwalla Civ. Case 22-D-1968, 1/2/69, Duff J.

Tanzania Exhibitors Limited v. Karimbhai Hassanali Adamji Jariwalla Civ. Case 22-D-1968, 1/2/69, Duff J.

Under an agreement dated the 26^th day of February, 1965, the defendant leased to the plaintiff company the Cameo Cinema at a yearly rent of Shs. 36,000.-, payable by equal monthly instalments of Shs. 3,000/-, for a term of two and a half years commencing on the 1^st of March, 1965. When the lease expired, the plaintiff company remained in possession and refused to yield up the property, claiming protection by the provisions of the Rent Restriction Act, Cap. 479, which had been extended to include commercial premises with effect from the 1^st January, 1967

Held: (1) “Without reviewing the evidence in full, the picture that emerges is that the defendant seeks possession of the Cameo Cinema the lease of which has expired, he being anxious to trade again in what has become a fairly lucrative business. The plaintiff company, in addition to running the Cameo Cinema, own a premises known as the Empire Cinema which are at present occupied by a third party, against whom there is a judgment granting possession of the premises to the original owner the present defendant, the latter having assigned the benefit of that 

judgment to the plaintiff company. In opposing the claim for possession, Mr. Lakha has urged that it is not sufficient to plead that the defendant wishes to occupy the premises, and that it was incumbent on him to claim that he reasonably required an needed them. [Citing: Shrimpton v. Rabbits, Law Times Reports Vol. CXXX1, 478]. It seems to me that a wish, desire or requirement are attributed with the same meaning, and that the defendant’s wish to run a profitable business, ignoring the balance sheets that have been produced, is quite understandable and reasonable, his financial status having deteriorated. It was suggested that Kapoor’s company was only now reaping the benefit of their original [Tanzania Exhibitors Ltd.] investment in carrying out repairs to the cinema, but, as indicated earlier, this was done with a view to improving the trade while the lease was in existence, and quite obviously the directors have benefited, particularly Kapoor, who is drawing a salary of Shs. 42,000/- per annum. Again, this fact is one that has to be weighed in considering whether it would be reasonable to grant possession to the landlord, who hopes to increase his income, with the consequent loss to the directors of the plaintiff company of what they choose to term their salaries.” (2) “It was suggested by Mr. Lakha that section 19(1) (j) (ii) of the Rent Restriction Act could not be relied upon by a landlord seeking possession of commercial premises because the particular subsection referred obviously to a dwellinghouse which a land lord would require for his own occupation or for the occupation of his wife and children or for some person in his whole time employment …….. I am inclined to agree with Mr. Lakha that the particular subsection by its very wording refers to a dwelling house only and not to commercial premises, the basis of the defendant’s case however being contained in the provisions of section 19(1) (e) (ii) of the Act, which is specifically applicable to commercial premises”. (3) “In order to succeed in his claim, the defendant has to satisfy the court that it is reasonable to make an order for the recovery of possession, and that alternative accommodation reasonably equivalent is available or will be available when the order for possession is made, or that the plaintiff company owns commercial premises which are available to it. In considering whether the premises are reasonably required, it is the court’s duty to take into account all relevant circumstances as they exist at the time of the hearing, and the positions of both sides must be considered and the various factors weighted.” (4) “When the plaintiff company leased the premises from the landlord, a contract of sale between the same parties was entered into on the very same day, the purchase of the premises known as the Empire Cinema being involved ……. I think it must also be accepted that the sale of the Empire Cinema and the lease of the Cameo were linked together, as suggested by Jariwalla, who claimed that the sale would not have gone through without his consent to the granting of the lease to the plaintiff company; paragraph 4(e) of the lease tends to support Jariwalla’s evidence on this point. The position at present is …. That despite the balance sheet of the plaintiff company the Cameo Cinema business is a lucrative one which the defendant is anxious to benefit from now that the lease has expired. It must be accepted that he is in financial difficulties, and that the income of Shs. 3,000/- per month which he receives by way of rent from the plaintiff company is inadequate to support both him and his dependants …. It seems to me and I hold that, weighing the evidence and considering the circumstances of both sides, it would be just and equitable to give possession of the  Cameo premises to the landlord but before making an order to that effect I would have to be satisfied that alternative accommodation was or will be available. For this reason I think it proper to adjourn my final decision in the matter and to await the outcome of the execution proceedings in respect of the Empire Cinema [as possible alternative accommodation].